dissenting:
To support its judgment of reversal this Court relies upon the employees’ violation of §§ 292 and 293 of the Criminal Code as justification for the Steamship Company’s discharge of its seamen. If the seamen were discharged not for labor activity but because of the commission of serious crime, Labor Board v. Fansteel Corp., 306 U. S. 240, would be authority for the Court’s holding. It was there decided that § 2 (3) of the Labor Act did not preserve a striker’s eligibility for reinstatement by the Board under § 10 (c), if the striker was discharged for reasons other than “union activity or agitation for collective bargaining,” e. g., criminal acts. 306 U. S. at 255. The Court recognizes that where “an employer indulges in an unfair labor practice, a strike results, and several men are discharged for participating in the strike,” and nothing more appears, the Labor Board may properly rein*50state the strikers. It concludes, however, that where the strike provoked by the unfair practices is itself unlawful, the Board, regardless of the circumstances, loses its power to reinstate after discharge. This position, we think, unduly expands judicial review of the Board’s discretionary power of reinstatement under § 10 (c) and is not supported by the Fansteel decision.
This Court recognized in the Fansteel case that the Board had discretion over reinstatement. 306 U. S. 258. It was thought that, however wide that discretion might be, “its limits were transcended” in that case. The ninety-five men in Fansteel were discharged “for the seizure and retention of the buildings.” 306 U. S. 252. But those men held the buildings from February 17 until February 26. They disobeyed a court injunction order to surrender the factory, and successfully resisted by force the sheriff’s efforts to enforce it. Only on his second attempt, with an increased number of deputies, did the sheriff accomplish their eviction and arrest. 306 U. S. 248-49.
Nothing approaching such disorder occurred here. The seamen’s conduct did not affect the safety of the vessel. The only evidence of violation of the statutes is that the orders to load were ignored. We may assume, for this dissent, that this resulted in a violation of the criminal statutes. The Board found that the respondent refused to bargain collectively with the Union, that primarily this precipitated the strike, and that the respondent was not warranted in discharging any employee solely because of the strike. It further found that the strikers did not hold the ship in defiance of the owner nor did they trespass. The Board found in each instance that the discharges were not for disobeying orders but for striking, for peacefully, albeit unlawfully, resorting to self-help in retaliation against denial of their rights.1 On the basis of *51these findings, supported by substantial evidence, the Board exercised its discretion to reinstate these men.
We think that, under these circumstances, it acted within its authority. We can see no justification for an iron rule that a discharge of a striker by his employer for some particular, unlawful conduct in furtherance of a strike is sufficient to bar his reinstatement as a matter of law. Fansteel teaches that there are extremes of conduct which leave no discretion to the Board. We think that the acts here fall on the other side of the line and that the Circuit Court of Appeals properly so determined.
Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Murphy concur in this dissent.“The evidence is plain that both Tracey and Ferguson were discharged because of the leading parts they played in the strike. Chief *51Engineer Norton testified that he did not recommend Ferguson’s discharge merely because he had disobeyed orders. ‘I would have overlooked that had he taken the fires until we got straightened out.’ Captain Rudan testified that he discharged both these men upon Norton’s complaint that ‘they had been on watch at the time of the commencement of this what I consider disobedience, and if they had gone on watch at the time, that the rest of the men probably would have followed. . . .’”
“Captain Rudan’s testimony makes it abundantly clear that the motivating factor in the respondent’s decision to discharge Pfuhl was his participation in the strike. . . .
“We entertain no doubt that an employee’s intoxication provides ample reason for his discharge. We believe, however, that the respondent did not discharge Warren for this reason, but rather that it seized upon his drinking proclivities to rid itself of an active union officer. . . .
“On cross-examination Sherry admitted that Smith was discharged because of his participation in the strike. . . .”